§ (" . After section 87 of the National Parks and Access to the Countryside Act 1949 there is inserted—456
§ "Duty of certain bodies and persons to have regard to conservation and enhancement of areas of outstanding natural beauty.
87A.—(1) In exercising or performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty, any relevant authority shall have regard to the need to conserve and enhance the natural beauty of that area.
(2) For the purposes of this section "relevant authority" means—
(3) In subsection (2)—
public body" includes—
§ The noble Lord said: In moving this amendment, perhaps I may remind the Committee of something that I said earlier. I am chairman of the Sussex Downs Conservation Board, the length of which from the east Hampshire/Sussex boundary to Eastbourne lies within an area of outstanding natural beauty. I am also on the executive committee of the Association of Areas of Outstanding Natural Beauty, an association which was formed fairly recently and of which every AONB in England and Wales is now a member.
It may be said that this is a modest, generalist amendment and, therefore, why table it at all? However, the fact is that the law as it currently stands designates land as areas of outstanding natural beauty but is then very unclear about the consequences. That is something that we shall tackle perhaps on Monday evening when we reach the various clauses at the end of this part of the Bill. Indeed, talking to this amendment this evening is rather, as the noble Lord, Lord McIntosh, said earlier in relation to Amendments Nos. 417ZA and 417B moved by my noble friend Lady Byford, awkward at the present time. But there it is. The Public Bill Office placed the amendment at this point in the Marshalled List and so I shall speak very briefly to it.
The purpose of the amendment is to make a rather greater reality of general AONB designation than exists at present. It is a preface to the much more detailed discussion which we shall have on later amendments on Monday evening which deal with AONBs and the setting up of statutory conservation boards.
The amendment seeks to ensure that "any relevant authority", including a wide range of public bodies,
shall have regard to the need to conserve and enhance the natural beauty of that area",
for which it is responsible which is in an area of outstanding natural beauty.
§ It is a generalist amendment. Perhaps I may give the Committee an example of how it may work. At present, if the Secretary of State is making a decision about the route of the Okehampton bypass, because that lies in a national park he must have regard to the need to conserve and enhance the natural beauty and whether that affects the route of the bypass. Let us suppose that a comparable bypass were being built today around either Chichester or Arundel in West Sussex. Both lie in an AONB, but the Secretary of State would not have to have comparable regard to the need to conserve and enhance the natural beauty of the area.
§ The amendment merely seeks to bridge that gap. We are already assured by Ministers that in planning terms AONBs have, and will have, exactly the same degree of protection through PPGs as national parks. This is a more generalist approach but it is important in a general sense. It will give comfort to the noble Baroness, Lady Miller of Chilthorne Domer, who commented earlier that she was worried about there being, in a sense, two classes of AONBs—those which are in conservation board areas, if that is the will of the Committee next week, and those which are not. But my amendment applies to all AONBs, whether they are in a conservation board area, have joint advisory committees or whether the duties and responsibilities come directly under the local authority.
§ Therefore, on that basis, I recommend the amendment to the Committee and I hope that it will find favour. I beg to move.
I gladly and warmly support the amendment moved by my noble friend. However, there is one consequence which we should bear in mind. I hope that I am not just being a stuffy old lawyer when I make this point. But it is a rule of statutory interpretation that if one particular matter is expressed, other matters which might have been expressed are assumed to be excluded. The Romans expressed it much more succinctly and better. They said: expressio unius est exclusio alterius. It arises in this way. The proposed subsection (1) of the amendment refers to,the need to conserve and enhance the natural beauty of that area",that is, in an area of outstanding natural beauty. But surely the public bodies mentioned in the proposed subsection (3) should endeavour to conserve and enhance the natural beauty of any area in the countryside. The areas of outstanding natural beauty are an extremely limited part of our countryside. I admit that they are special and should be carefully conserved, but there are many other parts which equally need to be conserved and their beauty enhanced.
Although we should accept my noble friend's amendment, I believe that on Report we should add a new clause to follow it which would have the effect of saying that all areas within the countryside should also be conserved and have their natural beauty enhanced by the public bodies concerned.
§ Lord Bridges
I support the amendment moved by the noble Lord, Lord Renton of Mount Harry. I believe that one of the main purposes of the Bill is to improve the planning, status and protection afforded to the areas of outstanding natural beauty.
Perhaps I may say to the noble Lord, Lord Renton, that this part of the Bill is specific to the AONBs. This is a desperately needed improvement to the AONBs. They lack a status of protection, which they need. The point he makes is a general one, but I do not think that it fits the purpose of this clause.
The noble Lord, Lord Whitty, will not be surprised to hear me speak in this way. In the past he has answered debates in which I have raised this question. It is perhaps pertinent to give an illustration of the kind of problem which arises. I live in the Suffolk Coasts and Heaths AONB. There was a proposal to build a commercial airport on the site of a redundant American airbase. We knew this to be outside the terms of the Government's policy planning guidance. However, the planning authority chose not to follow such guidance—designed to give a degree of protect ion to the AONB—on the grounds that they felt that the economic development which would come in its train would override the importance of the AONB.
The purpose of my Unstarred Question was to invite the noble Lord, Lord Whitty, to remind the planning authority—not personally but perhaps by a member of his department—of PPG7. The noble Lord did not answer the point in the debate. However, I discovered afterwards, which I long suspected, that it is the Government's intention not to interfere with the deliberations of the local authority unless they hear that it is minded to approve such an application. How that is discovered before the local authority makes up its mind I do not know. However, this whole situation will be avoided if the amendment tabled by the noble Lord, Lord Renton of Mount Harry, is included in the Bill. I hope that that will be possible.
§ Baroness Miller of Chilthorne Domer
From these Benches we welcome the amendment and look forward to the full debate we shall have on Monday. We believe that the amendment rectifies what was almost an accident in 1949 when AONBs were not given any status and national parks were.
We thank the noble Lord, Lord Renton of Mount Harry, for the amount of work which he did in bringing forward his private Bill. That has enabled this legislation to come before us in a state which perhaps it might not have been in without his previous hard work. We look forward to debating this issue more fully on Monday.
§ Lord Whitty
The whole subject of AONBs will be debated more fully on Monday. However, I can register now that the Government have sympathy with the amendment. It is right that in carrying out their functions public bodies should have regard to the purposes for which AONBs have been designated. I do not necessarily endorse everything said by the noble Lord, Lord Bridges. However, I believe that he is probably right as regards the fact that the Bill deals 459 with AONBs, and therefore the issues raised by the noble Lord, Lord Renton, do not directly arise. However, we shall take advice on that before we come back on Report.
Although we have not included this provision so far in our amendments, we are prepared to consider its inclusion in the Bill and table an amendment on Report which will probably have the same effect as Amendment No. 453. It will probably be at the beginning of the AONB section of the Bill rather than here. I hope that with that explanation, the noble Lord, Lord Renton of Mount Harry, will accept that we shall return to the matter and will feel able to withdraw his amendment.
§ 10.45 p.m.
§ Lord Renton of Mount Harry
I thank the noble Lord, Lord Whitty, for that support and for his assurance that he will come back with a government amendment on Report.
I noticed in passing that my amendment could not in fact stand exactly as it is. It refers to,After section 87 of the National Parks and Access to the Countryside Act".But in an amendment at the end of the schedule, Section 87 of that Act is to be revoked. It is rather difficult therefore for an amendment to refer to a section in a previous Act which has disappeared. However, that is a technicality. Much more important is the Minister's comment that he will table an amendment on Report.
I thank the noble Lord, Lord Bridges, and others for their support, and to my eponymous noble friend Lord Renton, I have to say that I expect him to seek clarity in the law and to properly correct me if I have not achieved it. I only make the point that AONBs now cover 15 per cent of the countryside and that justifies this clause referring only to AONBs. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 66 [Sites of special scientific interest]:
Lord Whitty moved Amendment No. 454:
Page 41, line 38, at end insert—
("( ) A notification under section 23 of the National Parks and Access to the Countryside Act 1949 (notification to local planning authorities of areas of special scientific interest) which by virtue of section 28(13) of the 1981 Act as originally enacted had effect as if given under section 28(1)(a) of that Act, shall cease to have effect.").
§ The noble Lord said: Amendments Nos. 454 and 462 clear up an historical "hang over". The National Parks and Access to the Countryside Act 1949 required the conservation agency to notify only the local planning authority if it considered that an area of land was of special interest. It was only with the advent of the 1981 Act that the conservation agency was obliged to serve this notification also on owners and occupiers of a site.460
§ Almost all the sites originally notified in England and Wales under the 1949 Act have since been notified using the 1981 Act procedures, so that the owners and occupiers are aware that a site is special. There are now few sites identified only through a 1949 Act notification. The agencies will re-examine those and, where they are of special scientific interest, will notify them under the new legislation as soon as possible. There is therefore no need for notifications given under the 1949 Act to be retained and these amendments clarify the position. I beg to move.
§ On Question, amendment agreed to.
Baroness Byford moved Amendment No. 455:
Page 42, line 5, leave out subsection (3).
§ The noble Baroness said: I rise to move an important amendment which deals with the removal of powers for English Nature and the CCW to purchase land compulsorily outside SSSIs. Subsection (3) provides powers to enable English Nature and CCW to purchase compulsorily any land which could be the subject of a management agreement under Section 15 of the Countryside Act 1968. That includes any land within an SSSI and, as a consequence of Clause 66(2), any "other" land. Subsection (2) extends the current provisions which allow agreements to be made on land "adjacent" to SSSIs to any "other" land where this is for the purpose of conserving features of an SSSI. I suggest that two issues arise out of this provision.
§ First, the powers in subsection (3) appear to duplicate those in Schedule 8, new Section 28L, in so far as they provide powers for compulsory purchase of all of an SSSI or any part of an SSSI. Moreover, the tests applied in the two cases differ in their detail. That is confusing. How will English Nature and CCW decide which power to use in considering the compulsory purchase of land in an SSSI? Perhaps the Minister could justify that apparent duplication of powers, assuming it is intentional; it may not be.
§ Secondly, the powers of subsection (3) appear to give English Nature and CCW the power to approach the owner of any land which is of no scientific interest in itself (otherwise it would be designated an SSSI in its own right), to seek agreement with him for the purposes of protecting an SSSI elsewhere and, if agreement cannot be secured, to purchase his land compulsorily. It is questionable whether those drastic powers are really necessary. For those reasons subsection (3) should be deleted. I beg to move.
§ Lord Whitty
Amendment No. 455 concerns the compulsory purchase of land, which is always a sensitive subject. I understand why the noble Baroness is questioning the circumstances in which such powers would be used. Let me emphasise that in considering the points the conservation agencies have in practice used their existing powers of compulsory purchase extremely rarely—once in the past 10 years in relation to England.
461 We recognise the efforts of many land managers who are committed to conservation. But there are exceptional cases; for example, where the activities of an owner or occupier of land which is not an SSSI are affecting the special interest on an area which is of special interest. We have introduced provisions in Clause 66(2) which will enable the agency to offer a management agreement in order to encourage and support management of the land which will help conserve the special interest features on that land. But where the agency has offered an agreement but the agreement has been rejected or has been accepted and then breached, and where as a result damage to the special interest is continuing to occur, it is appropriate that we should empower the conservation agencies to tackle the problem.
However, compulsory purchase orders should not be made unless there is a compelling case in the public interest and any such order which is made, if there are objections, will need to be subject to confirmation by the Secretary of State or the National Assembly for Wales. There would, of course, be full compensation where land is acquired.
I re-emphasise that the CPO powers would be used only in exceptional circumstances where other avenues had failed. There is no intention of significantly increasing the area of land which the agencies own. An order would only follow extensive discussions with the owner or occupier of the land. Only if that process failed would the CPO come into effect.
If the agency does acquire the land compulsorily, it may take steps to conserve the special features. However, the provisions also enable the agency to dispose of the land provided that it can do so on terms which ensure that the special features of the site—in other words, the reason the land was acquired in the first place—are satisfactorily conserved. This flexible approach will ensure that the agency can find the best solution to the long-term conservation of the land.
The noble Baroness asked about the duplication of the powers. Clause 66 deals primarily with instances in which the agency seeks to acquire the land of a special site. However, Section 28 is different. It is a power which arises only when the agency is unable to serve the management of the land. I may have slightly misinterpreted that piece of advice but I have tried to distinguish between the two cases.
Amendment No. 456A relates to the Countryside Council for Wales and seeks to address what is seen as an anomaly. The council is defined in the Countryside Act as the "Countryside Council for Wales". This interpretation was inserted by the Section 130 and Schedule 8 of the Environmental Protection Act 1990. In the context of the 1968 Act, it is therefore appropriate that the provision should refer to "the council as respects land in Wales" in order to ensure that the drafting within that Act is consistent. That is the explanation for the slightly anomalous form of words and I do not believe that Amendment No. 456A is appropriate.
462 I hope that with that explanation the noble Baroness will not pursue her amendment.
§ The Duke of Montrose
I speak not as a lawyer but as a landowner prior to devolution who experienced the 1981 Act. I own two nature reserves and three sites of special scientific interest. When I applied to do something on the outside of an SSSI I was told that the nature conservancy body would oppose it. There are compulsory purchase powers for SSSIs but the Minister is talking about an extension into areas outside them. I believed that that was already covered by any activity which might require planning permission. Presumably, the local authority would not go against the advice that it had been given. Is this merely an extension of powers to cover activities that would not require planning permission? What is the increase in power that is sought?
§ Lord Whitty
This activity would not necessarily require planning permission, but it would affect the sustainability of the SSSI. The activity might not formally require planning permission but would seriously affect the SSSI if it was allowed to continue and there was no agreement between the conservation agency and the landowner, or, if there was an agreement, there was a breach of it. That situation would arise in those circumstances. If the noble Duke requires any further information, I undertake to write to him.
§ Lord Bridges
What I say does not arise directly on this amendment but it is perhaps polite to inform those concerned that when the Committee comes to debate Schedule 8, which deals with the exploitation of a fishery inside an SSSI, I propose to raise my concern about the draconian powers in that part of the Bill.
§ Baroness Byford
I am grateful to both noble Lords for their contributions. The noble Lord, Lord Bridges, perhaps touches on a point that has been raised with us; namely, that English Nature and CCW are allowed to purchase land other than adjoining land. I need to read the response of the Minister. Perhaps we can have discussions before we return to the matter at Report stage. At this stage I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Byford moved Amendment No. 455A:
Page 42, line 17, leave out ("physiographical") and insert ("geomorphological").
§ The noble Baroness said: I speak to Amendment No. 455A very briefly. I am informed that the amendment proposes an improvement to the language used in the Bill. I shall try to pronounce the word concerned. All references to physiographical features are strictly incorrect and are becoming obsolete, according to the first edition of the Longman Dictionary of Geography (1985). My goodness! In modern geographical parlance physiography—I am sure that my pronunciation is not correct but it is very late—is known as geomorphology. I shall not struggle 463 any further. This amendment is concerned with the correct technical terms. I hope that the Government will agree that there has been a mistake in the wording. I beg to move.
§ Lord Greaves
I appreciate the concern of the noble Baroness about geographical terms. However, I believe that she is wrong, and I shall explain why. I also do not understand these amendments. In the first four and sixth amendments the noble Baroness seeks to replace "physiographical" with "geomorphological" in a passage that includes "geological" and "physiographical". However, in Amendment No. 476A the noble Baroness wants to replace "geological" with "geomorphological" but leave in "physiographical". There is an inconsistency in the proposed amendments.
However, as I understand it, geology is the science of rocks. That word has also come to mean rock structures generally. Therefore, one can refer to conserving the geology of an area. I do not believe that "geomorphology" has that meaning. That word describes the science of surface land features as they are naturally formed. I believe that "physiography" is the correct technical term to describe land forms as opposed to the science of how they are formed. That is the correct term. The Government have it right. Geomorphology is the science of natural processes of landform formation. There may be physiographical features which need to be conserved which are not technically landforms; for example, there might be Anglo-Saxon strip lynchets in the terraces on the hillside, or there might be burial mounds or whatever. There would be physiographical features but not geomorphological features. I therefore support the Government on this dramatic and vital debate.
§ 11 p.m.
§ Baroness Byford
I have more that I could read out, but perhaps the best thing I can do is write to the Minister. He can ponder upon my letter when it arrives. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 455B not moved.]
Lord Whitty moved Amendment No. 456:
Page 42, line 32, leave out ("the Nature Conservancy Council for England") and insert ("English Nature").
§ On Question, amendment agreed to.
§ [Amendment No. 456A not moved.]
§ Clause 66, as amended, agreed to.
§ [Amendment No. 457 had been withdrawn from the Marshalled List.]464
Lord Whitty moved Amendment No. 457A:
Before Schedule 8, insert the following new schedule—